R v Yen - [2007] NZCA 203

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA190/06 [2007] NZCA 203

THE QUEEN

v

DAVID YEN

Hearing: 19 October 2006
Court: Arnold, Randerson and Ronald Young JJ Counsel: D G Slater for Appellant
S B Edwards for Crown

Judgment: 19 October 2006

Reasons: 23 May 2007

JUDGMENT OF THE COURT

A The indictment is amended to read:

The Crown Solicitor at Invercargill charges that David Ta Yen on the

14th day of December 2005 at Queenstown attempted to have unlawful sexual connection with [the complainant], a child under 12, contrary to s 132(2) of the Crimes Act 1961.

B The appeal against conviction is dismissed.

R V YEN CA CA190/06 19 October 2006

CThe appeal against sentence is allowed. The sentence of two years imprisonment is quashed and a sentence of 15 months imprisonment is
substituted.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] On 1 May 2006 the appellant was sentenced in the District Court at Invercargill on one count of attempted sexual violation to which he had pleaded guilty. He was sentenced to two years imprisonment by Judge K J Phillips.

[2] He appealed against both his conviction and sentence. His sole ground of appeal against conviction was that a miscarriage of justice had occurred because, in law, the facts upon which he pleaded guilty could not have constituted attempted sexual violation. The sentence appeal was advanced on the ground that it was manifestly excessive.

[3] When this matter was heard on 19 October 2006, we ordered that the indictment be amended under s 335(1) Crimes Act 1961 to a charge of attempting to have unlawful sexual connection with a child under 12, contrary to s 132(2) Crimes Act. Having heard counsel, we dismissed the appeal against conviction but allowed the sentence appeal by reducing the sentence to 15 months imprisonment.

[4] We announced the outcome immediately because we were informed by counsel for the Crown that the appellant had been in custody since December 2005 and, if the sentence were reduced by any period greater than four months, he would be eligible for immediate release. Having concluded that the sentence should be reduced to 15 months, it was apparent that our decision should be communicated forthwith to the appellant and the prison authorities.

[5] We informed counsel that our reasons would follow. These are those reasons.

Background facts

[6] The agreed summary of facts upon which the appellant was sentenced revealed that, on 14 December 2005, the appellant approached the complainant who was playing with her four year old brother on a footpath outside their residential address. The appellant and the complainant were not known to each other. During this incident, the appellant’s pants slipped down. He was not wearing any underclothes and his penis was exposed for a few seconds. The complainant reacted by placing her hands over her mouth and giggling.

[7] The appellant walked…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Yen

Details

AGLC: R v Yen [2007] NZCA 203
Case: [2007] NZCA 203
Decision Date: 23 May 2007

CaseChat Overview and Summary

The case of R v Yen involved an appeal against both conviction and sentence. The appellant, David Yen, was convicted in the District Court at Invercargill of attempted sexual violation of a child under 12, contrary to section 132(2) of the Crimes Act 1961. Yen appealed against both his conviction and the sentence of two years imprisonment imposed on him. The appeal against conviction was based on the argument that a miscarriage of justice had occurred because the facts upon which he pleaded guilty could not, in law, constitute attempted sexual violation. The sentence appeal was advanced on the ground that the sentence was manifestly excessive.

The Court of Appeal dismissed the appeal against conviction but allowed the sentence appeal by reducing the sentence to 15 months imprisonment. The court held that Yen's actions were sufficient to amount to an attempt to have sexual connection with the complainant and that there was no miscarriage of justice. However, the court found the original sentence to be manifestly excessive given the circumstances of the case. The court substituted a sentence of 15 months imprisonment for the sentence of two years imposed by the Judge, taking into account the mitigating factors and the appellant's guilty plea. The court concluded that an appropriate sentence in the particular circumstances of this case was 15 months imprisonment.

Orders